Walls v. Waste Resources Corp.

No. 2-83-418 (640 F. Supp. 79) (E.D. Tenn. May 8, 1986)

The court rules that the 60-day notice requirement of § 112(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for recovery of response costs by private parties from the Superfund is also a jurisdictional prerequisite to a § 107 action to recover response costs from responsible parties. The court wholly adopts the magistrate's report and vacates its earlier ruling in this case, 16 ELR 20797, in which the court also adopted the magistrate's report in its entirety. The court initially holds that it lacks subject matter jurisdiction because of the plaintiffs' failure to allege compliance with the notice requirement of § 112(a). The court specifically rejects a contrary line of cases ruling that the § 112(a) notice is only required when a claim is made against the Superfund. The court observes that applying the 60-day notice requirement to all CERCLA actions conserves the limited Superfund monies and operates to avoid litigation where possible. The court accordingly holds that the notice requirement cannot be satisfied by either a "substantial compliance" or "constructive notice" rationale since the notice is more than a mere technical requirement.

[Related cases appear at 16 ELR 20407 and 20787.]

Counsel for Plaintiffs
Allan Kanner, Douglas Lind, Howard J. Sedran, Arnold Levin
Allan Kanner & Associates
1616 Walnut St., Philadelphia PA 19103
(215) 546-6661

Counsel for Defendants
Richard T. Sowell, Wanda Sobieski
Baker, Worthington, Crossley, Stansberry & Woolf
530 Gay St. SW, Knoxville TN 37902
(615) 546-2800

[16 ELR 20965]

HULL, Chief Judge.

This is an action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,42 U.S.C. § 9601 et seq. [CERCLA] brought by private parties to recover "response costs" not from the "superfund" but from the principal responsible parties. Under the provisions of 42 U.S.C. § 9612(a), private plaintiffs are required, as a jurisdictional pre-requisite, to give sixty days notice before filing claims against the superfund. There is a split in district court decisions on the question of whether this notice requirement should also be applied to actions against "responsible parties".

After careful analysis of the differing district court decisions on this question, a magistrate in this district has adopted the position that the sixty-day notice requirement applies to actions, such as this one, against responsible parties. Because the plaintiffs in this case failed to give the requisite actual notice, he has recommended that this case be dismissed for lack of subject matter jurisdiction. Rule 12(b)(1), Federal Rules of Civil Procedure. [Doc. 199]

After careful consideration of the plaintiff's exceptions [Doc. 200], this Court agrees.

Accordingly, this action is hereby DISMISSED.

REPORT AND RECOMMENDATION

ROBERT P. MURRIAN. United States Magistrate.

This matter was referred to the undersigned pursuant to Rule 72(b), Federal Rules of Civil Procedure, on January 13, 1986, for a report and recommendation on the following motions:

1. to dismiss or for summary judgment filed by defendants Waste Resources Corporation and Waste Resources of Tennessee, Inc. [Court File No. 169];

2. to dismiss or for summary judgment filed by defendants Allied Corporation and American Cyanamid Company [Court File No. 170];

3. to dismiss and to strike filed by NCR Corporation [Court File No. 171];

4. to dismiss and to strike filed by NCR Corporation [Court File No. 172];

5. to dismiss or for summary judgment filed by defendants Beecham, Inc. and Orkin Exterminating Company, Inc. [Court File No. 173];

6. to dismiss or for summary judgment filed by defendants Columbus McKinnon Corporation and Ball Corporation [Court File No. 174];

7. to dismiss or for summary judgment filed by defendants Rohm and Haas Tennessee, Inc., Hoover Universal, Inc., Waste Management, Inc., and TRW, Inc. [Court File Nos. 175, 176, 177, 178];

8. to dismiss filed by defendants Alladin Plastic, Inc. and General Electric Company [Court File Nos. 179, 180];

9. to dismiss or for summary judgment filed by defendants Norandex, Inc., Burton Rubber Processing, Inc., IPC Dennison/International Playing Card and Label Company, Hayes Albion Corporation, Grief Brothers corporation, Westinghouse Electric Corporation, Arapahoe Chemicals, Inc., Texas Instruments Incorporated and Kingsport Press, Inc. [Court File Nos. 182, 183, 184, 185, 186, 189];

10. to dismiss or for summary judgment filed by defendant Gary Phillips [Court File No. 192]; and,

11. renewed motion for summary judgment filed by defendant Velsicol Chemical Corporation [Court File No. 193].

In remanding this action to this Court, the United States Court of Appeals for the Sixth Circuit did not decide and expressed no opinion as to whether the notice provision in 42 U.S.C. § 9612(a) applies to private response cost recovery actions (such as this one) under 42 U.S.C. § 9607. Walls v. Waste Resources Corporation, 761 F.2d 311, 318-19 (6th Cir.1985).

In a Report and Recommendation filed September 20, 1985, the undersigned stated that

[T]he notice provision set forth in 42 U.S.C. § 9612(a) applies only to claims against the superfund. State of New York v. General Electric Co., 592 F. Supp. 291, 299-300 (D.C. N.Y. 1984). Section 9612(a) does not state that "no action may be commenced" unless a 60-day notice is given. It seems to be a limitation on claims against the "superfund" and not a limitation on actions (i.e. "lawsuits") against private persons or entities.

Court File No. 121, III.A., p.7. United States District Judge Thomas G. Hull affirmed that Report and Recommendation and overruled all objections thereto in an order filed October 11, 1985 [Court File No. 143]. Therefore, the only viable claim remaining after that was that under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601, et seq. (CERCLA). Thereafter, Judge Hull declined to allow appeals requested by some of the parties and invited motions addressing whether or not the CERCLA claim was barred by any applicable statute of limitations [Court File No. 168]. The motions indicated above followed.

Among the motions filed was that of defendant Velsicol Chemical Corporation [Court File No. 193]. It renewed its argument that the Court lacks jurisdiction over the CERCLA count due to the failure of the plaintiffs to give Velsicol the proper [16 ELR 20966] presentation of their claims prior to the commencement of an action in this Court as dictated by 42 U.S.C. § 9612(a).

In this action, the plaintiffs' CERCLA claim is made in an effort to recover "necessary costs of response" under 42 U.S.C. § 9607(a)(3)(B) (Public L. 96-510, Title I, § 107). In connection with renewal of its motion to dismiss for lack of subject matter jurisdiction, Velsicol very recently filed a copy of the decisions in the cases of Dedham Water Co. v. Cumberland Farms, Inc., Civil Action No. 82-3155Mc (January 3, 1986, D.Mass). __ F. Supp. __ (substantial compliance with § 9612(a) notice requirements will not vest subject matter jurisdiction in a federal distrct court) and State of Idaho v. Howmet Turbine Component Corporation, 627 F. Supp. 1274, (1986, D. Idaho) [Court File Nos. 197 and 198] (hereinafter referred to as Dedham Water Co. II and Howmet).

After further reflection upon the matter, and in light of these two recent decisions, I am of the opinion that the 60-day notice provision in § 9612 is a jurisdictional prerequisite to a CERCLA action and that I erred in recommending that the defendants' earlier motions on that ground be denied.

An objection to the subject matter jurisdiction of a federal court goes to the power of the court to hear and decide the case. Wright & Miller, Federal Practice and Procedure: Civil § 1350, 546 (1969). All questions regarding subject matter jurisdiction must be resolved before the merits re addressed. Gross v. Hougland, 712 F.2d 1034, 1036 (6th Cir.1983), cert. denied, 465 U.S. 1025, 104 S. Ct. 1281, 79 L. Ed. 2d 684 (1984); see also Rule 12(h)(3), Federal Rules of Civil Procedure. As the Court noted in Dedham Water Co., "I am not hereby removing the cloak of subject matter jurisdiction. I am simply declaring that this Court was not so cloaked when I made the decision in 1983 to the contrary." Slip op. at 5. Likewise, I conclude that "the cloak" was never present here in connection with the CERCLA claim to begin with.

In Howmet, the court noted that there are no federal appellate decisions on the point but it cited six federal district court decisions, including the 1983 reported decision in Dedham Water Company reported at 588 F. Supp. 515 (Dedham I). See also United States v. Conservation Chemical Co., 619 F. Supp. 162 (W.D.Mo. 1985); State of Colorado v. Asarco, Inc., 616 F. Supp. 822 (D.Colo.1985); State of New York v. General Electric Co., supra; Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F. Supp. 1437 (S.D. Fla.1984); United States v. Allied Chemical Corp., 587 F. Supp. 1205 (N.D. Cal. 1984). Taking into account the unreported decisions previously mentioned, four of these courts have held that the notice requirement of § 9612(a) is jurisdictional or that failure to allege compliance with it results in a failure to state a claim under CERCLA. Three decisions, General Electric, Conservation Chemical Company and Asarco are to the contrary.

I find the reasoning in the January 30, 1986, decision in Howmet to be very persuasive. There, as indicated above, the Court reviewed the current case law on the subject and stated as follows:

The foregoing review of the caselaw indicates the difficulty courts have had on the present issue. After wrestling with the matter, the Court feels most persuaded by, and will adopt, the reasoning and result in the Dedham line of cases. That is, this Court holds that the sixty-day notice requirement is a jurisdiction prerequisite to a CERCLA action. In the alternative, the Court rules that plaintiff's complaint, by failing to allege compliance with § 112(a), fails to state a claim upon which relief may be granted. The Court believes that the sixty-day notice requirement, as an integral part of CERCLA, must apply to actions brought under § 107. As the court stated in Bulk Distribution:

[D]eclaring section 9607(a) completely independent of CERCLA's other provisions is inefficient and costly because it permits parties to take unilateral actions when a joint effort may have been possible had the parties attempted to settle their differences before undertaking a response.

589 F. Supp. at 1449. The Court believes that the plain language of the statute, specifically §§ 101(4), 107 and 112, supports the conclusion that the notice requirement is applicable to actions brought under § 107.

The Court also notes that in this case, unlike the Dedham¹ and Allied Chemical cases, there is no substantial compliance or possibility of alleging compliance through amended pleadings. The notice of claim was mailed on December 12, 1983, the same day suit was filed and presumably was received by the defendants not only after the suit was commenced, but also beyond the three-year statute of limitations in § 112(d), which expired, as already held, on December 12, 1983. Thus, amending the complaint would be futile in this action. For this reason, the Court does not reach the question of what is entailed by "substantial compliance" or whether substantial compliance would satisfy § 112(a).

Because of the foregoing ruling, the Court does not reach the other grounds asserted by defendants for granting summary judgment on plaintiff's CERCLA claims.

627 F. Supp. at 1278-1279.

I do not agree with those decisions which hold that the procedures in § 9612(a) apply only when the plaintiff is making a claim against the so-called "superfund." See e.g., United States v. Conservation Chemical Co., 619 F. Supp. 162, 210-211 (W.D. Mo. 1985).

The applicable provision of CERCLA here is § 112(a), 42 U.S.C. § 9612(a), which reads:

All claims which may be asserted against the fund pursuant to Section 9611 of this title shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under § 9607 of this title. In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guarantor or other person or to present a claim to the fund for payment. (emphasis added)

As one court observed, ". . . [i]t is puzzling that Congress included the emphasized language, for it does suggest that a claim letter must precede every court action." Asarco, 616 F. Supp. at 826 (dicta). Also, it cannot be successfully argued that § 9612(a) has no application to § 9607(a) actions. Section 9612(d) contains the statute of limitations applicable to both court actions and claims against the superfund. Id., 616 F. Supp. at 825. Therefore, the prefatory language of § 9607 ("notwithstanding any other provision or rule of law. . .") was not intended to exempt § 9607 from the provisions of § 9612(a).

The plaintiffs in this case have chosen to seek their remedies in the courts and have not chosen to present a claim against the "superfund." See 42 U.S.C. § 9611(a)(2). As I understand it, this is an action that could have been a "claim" assertable "against the fund" if that election had been made. In either case, the clear statutory language of § 9612(a) (emphasized above) dictated that the 60-day notice be given. Section 9612(a) ". . . requires a party seeking recovery from either the [superfund] or a private party to first present the claim to the responsible party." United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1117 (D. Minn. 1982). This requirement serves two salutary purposes: (1) conservation of limited superfund monies and (2) avoidance of costly litigation where possible. In my view, Congress intended this to be more than a mere technicality which could be waived or avoided by assertion of some type of constructive notice or [16 ELR 20967] pare an EIS unless that decision is unreasonable. Found. for No. Amer. Wild Sheep v. Dept. of Ag., 681 F.2d 1172, 1177 (9th Cir.1982).

In reviewing the decision to forego preparation of an EIS, this court must consider whether plaintiffs have demonstrated that the road reconstruction proposal "may significantly degrade some human environmental factor." Columbia Basin Land Protection Ass'n. v. Schlesinger, 643 F.2d 585, 597 (9th Cir.1981). Plaintiffs need only have raised substantial questions as to whether this project may have a significant effect on the human environment. City & County of S.F. v. U.S., 615 F.2d 498, 500 (9th Cir.1980). The burden, of course, rests with the plaintiffs, to show that the resurfacing of the Porcupine-Sullivan Road may significantly undermine the human environment.

In the case sub judice, the Forest Service completed an Environmental Assessment ("EA") for the Porcupine-Sullivan Creek Road project. An EA serves as a vehicle for the determination of whether an EIS is required, for facilitating the preparation of an EIS if necessary, or for aiding an agency in discharging its NEPA-mandated duties if no EIS is required. 40 C.F.R. § 1508.9; 7 C.F.R. § 3100.20. Here, upon completion of, and consideration of, the EA, the Forest Supervisor determined that the repaving project's impacts were insignificant, and issued a "finding of no significant impact" ("FONSI"). This court must decide, in the first instance, whether the defendants took the requisite "hard look" at the environmental effects of this paving project, making its decision not to order an EIS reasonable. Kleppe v. Sierra Club, supra, 427 U.S. at 410 n. 21, 96 S. Ct. at 2730 n. 21.

While this court's order of August 5, 1983 was directed solely at plaintiffs' request for injunctive relief, many of the observations therein relate to the merits of the parties' cross-motions for summary judgment. Quite simply, this court deems reasonable the defendants' decision that the paving project, standing alone, need not be subjected to the rigors of a full EIS. Because everyone seems to acknowledge that this is more properly a "cumulative effects" case, extended discussion of this point is unnecessary.

The court first notes that the plaintiffs did not appeal the May 19, 1982 decision and FONSI administratively. As this court observed when denying injunctive relief, plaintiffs' attack on the resurfacing project was far from timely. See, generally, Memorandum of August 16, 1983. While it was observed that laches is to be applied infrequently in environmental cases, Coalition For Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir.1980), courts are not foreclosed from applying the doctrine. Lathan v. Volpe, 455 F.2d 1111 (9th Cir.1971). Here, much of the preparatory work had been completed when suit was brought. Crews were at the job site. Both plaintiff Vance and his attorney were well aware of the proposed course of action with respect to the resurfacing well before it commenced. The final decision to resurface Porcupine-Sullivan, and the associated FONSI, was announced one year prior to suit being filed.

Plaintiffs' lack of diligence notwithstanding, the fact remains that the evidence adduced was insufficient to convince this court that the resurfacing project itself should trigger the EIS portion of NEPA. This roadway, in a lesser state, has existed since 1968. Resurfacing plans included no proposal for widening. Proposals for resurfacing most segments of the road were accompanied by an EA. The general character and design speed of this roadway were not altered by the paving project. The project here under scruptiny merely resulted in improved drainage, and placement of an asphalt mat on the base rock. This project, then, could reasonably be construed as not amounting to a major Federal action significantly affecting the human environment.

Further, the evidence belies plaintiffs' contention that the EA prepared for Porcupine-Sullivan did not contain sufficient interdisciplinary input. Preparers of the EA consulted many individuals, including a wildlife biologist. The EA studied environmental effects on soil, watersheds, wildlife, recreation, and other factors. Of note is the fact that no comments were received on this EA.

As previously noted, the real crux of this case is whether the decision to improve this roadway, and the timber sales in the area, are "inextricably intertwined," necessitating combined treatment in a single EIS. Most recently, the Ninth Circuit Court of Appeals considered that very issue in Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985). Thomas involved a challenge by several environmental concerns to actions by the Forest Service in planning and approving a single lane, gravel road in a former National Forest roadless area located in the State of Idaho. In reversing the district court's grant of summary judgment on behalf of the Forest Service, the Circuit Court held that the road project and contemplated timber sales were "inextricably intertwined," were "connected actions," and would, in the court's view, "have cumulatively significant impacts." Thomas, 753 F.2d at 759. Accordingly, the Court of Appeals ordered preparation and consideration of an EIS that analyzed the combined impacts of the new road and the timber sales which, in the opinion of the court, the road was "designed to facilitate." Id., at 761.

Shortly after Thomas was decided, plaintiffs renewed their application for a temporary restraining order, indicating the belief that this case was governed by the holding in the Idaho controversy. Rather than spending time considering such extraordinary, equitable relief, this court ordered a timely trial on the merits. So much did plaintiffs rely on Thomas that a proposed order submitted by them, prior to trial, merely mirrored the language and analysis used in that decision. For reasons more fully explained below, this court finds that the scenario which has unfolded in the Yaak differs from the Thomas situation in several critical respects.

The most basic distinction between the Yaak and the Jersey Jack area in Thomas is the fact that, while the Yaak area has been roaded since at least 1968, the Jersey Jack area was an unroaded, National Forest area. Consequently, a second, vital difference appears. In the Yaak, this road has existed and will exist in the area whether or not any new timber contracts are awarded. The route covered by the road has not changed in response to new timber contracts. In contrast, the Ninth Circuit placed considerable emphasis on the fact that the location, routing, construction techniques and other aspects of the Jersey Jack road was entirely dependent upon the location and timing of the timber sales. Thomas, 753 F.2d at 760. Here, the new surface has admitted benefits to timber haulers, in the form of decreased trucking expenses and equipment breakdowns. Yet the evidence at trial was unequivocal that timber harvests would continue in the Yaak with or without the asphalt surface. In addition, plaintiffs are unable to seriously undermine defendants' contention that this road serves interests other than those of the logging industry, since hunters, recreationalists, and local residents also use this road.

In Thomas, the court noted that a "no action" alternative discussed in the EA for the project would "not provide the needed timber access." Thomas, 753 F.2d at 758. As has already been stated, this is not the case in the matter at bar, since timber sales have proceeded and can continue to proceed without the asphalt surface. Essentially, the Yaak differs from the Jersey Jack situation because, in the former case, the road proposal is neither the first step in, nor a fully necessary prerequisite to, continued timber harvesting in the area. This is greatly different from the Jersey Jack roadless area, since one alternative avail- [16 ELR 20968] "substantial compliance" rationale. See Walls v. Waste Resources Corp., supra.

The only notice to defendants alleged in the Second Amended Complaint is as follows:

The defendants have had constructive notice since December, 1983 when the initial action was filed by plaintiffs. Furthermore, on July 24, 1985 a letter was sent to all defendants, the EPA, and the state giving them notice of plaintiffs' intentions to continue to pursue their actions.

[Court File No. 163, p. 9]. This action was filed December 12, 1983. Constructive notice, like "substantial compliance" is insufficient. See Walls, 761 F.2d at 317.

Having failed to invoke the Court's subject matter jurisdiction, and it appearing that there are no circumstances under which the plaintiffs could do so, it is recommended that the CERCLA claim be DISMISSED. Rule 12(b)(1), Federal Rules of Civil Procedure. All other claims have been dismissed previously.²

1. A reference to the 1983 decision in Dedham I.

2. Any objections to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. See Thomas v. Arn, U.S. , 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).